U.S. v. Becker, 81 M.J. 483

First Principles: Constitutional Matters: Confrontation

1. the Sixth Amendment’s Confrontation Clause holds that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him; this bedrock procedural guarantee applies to both federal and state prosecutions and is a concept that dates back to Roman times; where testimonial evidence is at issue, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination; one exception to the cross-examination requirement, derived from common law, is the doctrine of forfeiture by wrongdoing, which provides that where an accused’s wrongful actions prevent a witness from testifying, and where those actions were designed to prevent the witness from testifying, admission of out-of-court statements by that witness does not offend the Confrontation Clause
2. the Constitution does not guarantee an accused person protection against the legitimate consequences of his own wrongful acts; it grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away with the intent to keep the witnesses from testifying, he cannot insist on his privilege
3. in military practice, the prohibition against the admission of hearsay is contained in MRE 802, and the forfeiture by wrongdoing exception to MRE 802 can be found in MRE 804(b)(6) which allows a statement offered against a party that wrongfully caused or acquiesced in wrongfully causing the declarant’s unavailability as a witness, and did so intending that result

Military Justice Personnel: Military Judge: Discretion

1. a military judge’s decision to exclude evidence is reviewed by an appellate court for an abuse of discretion; an abuse of discretion occurs when a military judge either erroneously applies the law or clearly errs in making his or her findings of fact
2. it is an abuse of discretion if the military judge: (1) predicates his ruling on findings of fact that are not supported by the evidence; (2) uses incorrect legal principles; (3) applies correct legal principles to the facts in a way that is clearly unreasonable; or (4) fails to consider important facts
3. in this case, in light of the available circumstantial evidence that the unavailable witness had previously recanted her testimony against appellant and refused to cooperate with law enforcement, the military judge’s conclusion that appellant’s actions against this unavailable witness were not done with the intention of preventing her testimony were supported by the record; as such, the military judge’s finding of fact on the intent element of the forfeiture by wrongdoing exception to the hearsay rule in MRE 804(b)(6) was not clearly erroneous, and the military judge did not abuse his discretion in finding that the circumstantial evidence did not warrant an inference that appellant acted with such an intention

Core Criminal Law Subjects: Evidence: Generally

1. a military judge’s decision to exclude evidence is reviewed by an appellate court for an abuse of discretion; an abuse of discretion occurs when a military judge either erroneously applies the law or clearly errs in making his or her findings of fact

Core Criminal Law Subjects: Evidence: Hearsay › Generally

1. the Sixth Amendment’s Confrontation Clause holds that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him; this bedrock procedural guarantee applies to both federal and state prosecutions and is a concept that dates back to Roman times; where testimonial evidence is at issue, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination; one exception to the cross-examination requirement, derived from common law, is the doctrine of forfeiture by wrongdoing, which provides that where an accused’s wrongful actions prevent a witness from testifying, and where those actions were designed to prevent the witness from testifying, admission of out-of-court statements by that witness does not offend the Confrontation Clause

Core Criminal Law Subjects: Evidence: Hearsay › Forfeiture by Wrongdoing

1. the Sixth Amendment’s Confrontation Clause holds that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him; this bedrock procedural guarantee applies to both federal and state prosecutions and is a concept that dates back to Roman times; where testimonial evidence is at issue, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination; one exception to the cross-examination requirement, derived from common law, is the doctrine of forfeiture by wrongdoing, which provides that where an accused’s wrongful actions prevent a witness from testifying, and where those actions were designed to prevent the witness from testifying, admission of out-of-court statements by that witness does not offend the Confrontation Clause
2. the Constitution does not guarantee an accused person protection against the legitimate consequences of his own wrongful acts; it grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away with the intent to keep the witnesses from testifying, he cannot insist on his privilege
3. in military practice, the prohibition against the admission of hearsay is contained in MRE 802, and the forfeiture by wrongdoing exception to MRE 802 can be found in MRE 804(b)(6) which allows a statement offered against a party that wrongfully caused or acquiesced in wrongfully causing the declarant’s unavailability as a witness, and did so intending that result
4. for a statement to qualify under the forfeiture by wrongdoing exception, (1) the party against whom the statement is offered must have wrongfully caused the declarant’s unavailability as a witness, and (2) the party caused the witness’s unavailability with the intent to make that witness unavailable, ie, that the accused intended his or her conduct to prevent the witness from testifying against him or her in court; and with respect to the second prong, the party’s intent, in causing the declarant’s unavailability, need not be motivated solely by the desire to prevent the declarant’s would-be testimony, rather, only that it was a motivating factor in the party’s decision to take such an action
5. to establish waiver/forfeiture by wrongdoing, the government must demonstrate both that the accused’s actions caused the witness’s unavailability and the accused’s conduct was “designed” to prevent the witness’s testimony; therefore, the accused must have intended to prevent the witness’s testimony before waiver applies and statements are admitted without confrontation
6. in this case, in light of the available circumstantial evidence that the unavailable witness had previously recanted her testimony against appellant and refused to cooperate with law enforcement, the military judge’s conclusion that appellant’s actions against this unavailable witness were not done with the intention of preventing her testimony were supported by the record; as such, the military judge’s finding of fact on the intent element of the forfeiture by wrongdoing exception to the hearsay rule in MRE 804(b)(6) was not clearly erroneous, and the military judge did not abuse his discretion in finding that the circumstantial evidence did not warrant an inference that appellant acted with such an intention

Trial Stages: Writs and Interlocutory Appeals: Article 62 Appeal

1. in an Article 62, UCMJ, appeal, an appellate court reviews the military judge’s decision directly and reviews the evidence in the light most favorable to the party which prevailed at trial
2. a military judge’s decision to exclude evidence is reviewed by an appellate court for an abuse of discretion; an abuse of discretion occurs when a military judge either erroneously applies the law or clearly errs in making his or her findings of fact; these standards also apply to interlocutory appeals under Article 62, UCMJ
3. on matters of fact with respect to appeals under Article 62, UCMJ, an appellate court is bound by the military judge’s factual determinations unless they are unsupported by the record or clearly erroneous; a reviewing court may not find its own facts or substitute its own interpretation of the facts
4. on an Article 62, UCMJ, appeal, an appellate court is not authorized to make factual determinations to support a simple difference of opinion between it and the military judge

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. in an Article 62, UCMJ, appeal, an appellate court reviews the military judge’s decision directly and reviews the evidence in the light most favorable to the party which prevailed at trial
2. a military judge’s decision to exclude evidence is reviewed by an appellate court for an abuse of discretion; an abuse of discretion occurs when a military judge either erroneously applies the law or clearly errs in making his or her findings of fact; these standards also apply to interlocutory appeals under Article 62, UCMJ
3. on matters of fact with respect to appeals under Article 62, UCMJ, an appellate court is bound by the military judge’s factual determinations unless they are unsupported by the record or clearly erroneous; a reviewing court may not find its own facts or substitute its own interpretation of the facts
4. on an Article 62, UCMJ, appeal, an appellate court is not authorized to make factual determinations to support a simple difference of opinion between it and the military judge